Time for a sexual harassment act?

(File pix) The Labour Department made it mandatory for all organisations to have a Sexual Harassment Policy in place as part of the Employment Act 1955 compliance after the new provision in the amended act came into force in 2013.

PRESENTLY, there is no special and comprehensive law on sexual harassment in Malaysia. Section 509 of the Penal Code, which criminalises the offence of “insulting the modesty of a woman” with a custodial penalty of up to five years, has been regarded as not sufficiently wide to encompass all the elements of sexual harassment.

In August 1999, a Code of Practice on the Prevention and Eradication of Sexual Harassment (Code of Practice) was introduced by the Human Resources Ministry (MOHR), but sadly, it does not have the force of law.

According to the Malaysian Employers Federation (MEF), as of August 2010, only 400 of 450,000 registered and active companies have adopted and implemented the code.

In August 2005, the Public Services Department issued a circular containing a set of Guidelines pertaining to sexual harassment issues in the public service (Garis Panduan Mengendalikan Gangguan Seksual di Tempat Kerja Dalam Perkhidmatan Awam).

In 2009, the Women, Family and Community Development Ministry (WFCDM) announced it was in discussions with MOHR regarding a new law on sexual harassment. Its then deputy minister, Datuk Noriah Kasnon, was quoted as saying that between 2005 and 2008, there were 3,906 cases of sexual violence and harassment cases, including rape and molestation, reported to the police.

In 2012, the Employment Act 1955 was amended (by Act A1419) by inserting a new provision defining “sexual harassment” as “any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his wellbeing arising out of and in the course of his employment”.

Another provision (a new Section 81B) makes it mandatory for all employers to establish a procedure dealing with complaints of sexual harassment (between employees, employers, and employer and employees) and to inquire into the complaint in a manner to be prescribed by the MOHR. The penalty for not implementing such a procedure is a fine not exceeding RM10,000.

Thereafter, the Labour Department made it mandatory for all organisations to have a Sexual Harassment Policy in place as part of the Employment Act 1955 compliance after the new provision in the amended act came into force in 2013.

Sexual harassment received a dramatic recognition recently as a “new tort” in the landmark decision of the Federal Court in June 2016 in Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor. The facts of that case are briefly as follows.

Both parties in this case, the appellant (male employee) and respondent (female employee) were employed in a well-known government-linked company (the company). The former held the position of a senior manager in a particular department while the latter was his subordinate.

In July 2009, the respondent complained to the CEO of the company that she was sexually harassed by the appellant. As a result of that complaint, the company held an inquiry.

The committee of inquiry found there was insufficient evidence to warrant disciplinary action against the appellant. However, the Human Resources Department of the company decided to issue a strong administrative reprimand to the appellant. The respondent applied for and was later transferred to a different division of the company.

Aggrieved by the complaint, which he claimed to be defamatory of him and had affected his reputation and later led to his contract of employment not being renewed by the company, the appellant lodged an official complaint to the company, seeking disciplinary action to be taken against the respondent for lodging the complaint without any proof. Unfortunately for him, the company took no disciplinary action against the respondent.

Two years later, in December 2011, the appellant issued a writ against the respondent seeking a declaration that he had not sexually harassed the respondent and that he had been defamed by her. Apart from demanding a public apology, the appellant sought general and aggravated damages.

In response, the respondent filed a defence and a counterclaim against the appellant. In her defence, she particularised the incidents of sexual harassment and in her counterclaim, she asked for damages for the sexual harassment that she had suffered.

In September 2012, the High Court dismissed the appellant’s claim, but entered judgment for the respondent on her counterclaim. Disappointed with the verdict, the appellant appealed to the Court of Appeal. In February 2013, the Court of Appeal dismissed the appeal.

Three months later, in May 2013, the appellant obtained leave of the Federal Court to appeal against the decision of the Court of Appeal. The point of law which the apex court had to decide was whether there is “a valid cause of action for a civil claim on the grounds of sexual harassment under the existing laws of Malaysia”.

On June 2, 2016, Suriyadi Halim Omar FCJ held that the “ingredients of sexual harassment are present in abundance” in this case, a persistent and deliberate course of “unreasonable and oppressive conduct targeted at the respondent, calculated to cause alarm, fear and distress to her”. The appeal was dismissed.

Given that recent recognition by the Federal Court of sexual harassment being a “new tort”, it remains to be seen whether Parliament will be sufficiently energised to enact the long-awaited Sexual Harassment Act in the near future.